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This site is based on Disciplinary and Regulatory Proceedings, 8th Edition
Disciplinary and Regulatory Proceedings is the leading work on this important and dynamic area of law. For 20 years it has provided authoritative guidance to lawyers, tribunals, and other experts dealing with professional discipline and regulation.

Confidentiality of data in the hands of a regulator

Communication of confidential information between one regulator to another or between different arms of a regulator is commonplace. It is not alway appreciated that such action may raise difficult issues of confidentiality and human rights. Light was cast on these issues by the recent case of General Dental Council v Savery & Ors [2011] EWHC 3011.
Savery concerned the propriety of the registrar of the GDC passing records in his possession to the Investigating Committee of the GDC for the purposes of an investigation into the allegations of professional misconduct and impairment of fitness to practise against a doctor. Ten of the patients had refused consent and the Respondent dentist's solicitors objected to the passing of the records to the disciplinary committees. A major issue between the parties was whether it was necessary for the Registrar first to apply to the court.
The issues raised in this judgment are so important and wide ranging that it is difficult to summarise them in the present space. Instead, the reader is directed to the following extracts from the judgment of Sales J.
‘… the obligation on the registrar under section 27(5)(a) to refer an allegation to the Investigating Committee (which referral triggers an obligation on the Investigating Committee under section 27A(1) to investigate the allegation) includes an obligation to refer all evidential material relevant to the allegation to the Investigating Committee as well…
‘So far as common law obligations of confidentiality are concerned, therefore, and subject to the issues arising under section 3(1) of the HRA discussed below, there is no barrier to the registrar of the GDC passing on the patient records in this case to the Investigating Committee and there would be no barrier to the Investigating Committee passing on those records to the relevant Practice Committee (if it is determined that the allegations ought to be referred to the Practice Committee). The fact that the patients in question object to the disclosure, or do not consent to it, does not affect this position…
‘Practice Committees have discretionary powers to regulate how hearings before them are conducted. In exercising those powers, such Committees will need to be alert to safeguarding patient confidentiality, taking care to ensure that confidential medical information relating to identified individuals is not released into the public domain unless absolutely necessary for some exceptional reason. This requirement is strongly reinforced by the obligations on the GDC and its Practice Committees under the HRA: a breach of Article 8 was found in Z v Finland (1998) 25 EHRR 371 arising from unnecessary disclosure of private medical information in the judgment of a court…
‘Arguably, when one turns to the public law/HRA regime, some attempt at getting in touch with the patients concerned to let them know that it is proposed that their records should be used for the purposes of professional misconduct proceedings may be a matter of obligation (absent circumstances which would make it impracticable or unduly harmful to the public interest to do so) to ensure that the interference with patients' Article 8 rights is "necessary in a democratic society" and kept within proportionate bounds…
‘The Strasbourg and domestic authorities make it clear that strong obligations of confidentiality will arise under Article 8 where a public authority has patient records in its hands, placing significant limits upon the extent to which it may disclose such records…
‘If a particular act of disclosure cannot be justified under Article 8(2), a breach of Article 8 would occur if it took place. Such a situation would give rise to questions under sections 3 and 6 of the HRA whether such act of disclosure would, because of its incompatibility with Article 8, be unlawful…. [If] such a situation arose, it would be "possible" under section 3(1) of the HRA to read and give effect to the relevant statutory provisions in the 1984 Act (in particular, sections 27(5)(a) and 27A(4)(a)) in such a way that they would not authorise that particular act of disclosure. In other words, those statutory provisions would fall to be read subject to any Article 8 rights of the patients in question preventing disclosure. That would mean that, in such a situation, the GDC and its organs would be subject to an obligation under section 6(1) of the HRA (not affected by anything in section 6(2)) to act compatibly with the Convention rights in question, and would be prohibited from disclosing the patient records which were in issue…
'Schedule 2 to the DPA permits processing of data where that "is necessary… for the exercise of any functions conferred on any person by or under any enactment" (paragraph 5(b)). Paragraph 7(b) of Schedule 3 to the DPA is to similar effect. According to these provisions, therefore, medical records obtained by the GDC may lawfully be used by the GDC and its committees in carrying out their statutory functions to investigate and, as appropriate, to impose relief or sanctions in relation to allegations of impairment of fitness to practise.'
‘I consider that, since the provisions in the 1984 Act fall to be read as qualified by Article 8 rights, the personal obligations of confidentiality imposed by the common law on the GDC, the registrar and individual committee members and others with respect to patient records would not be overridden by any statutory authority in a case where disclosure would involve a breach of Article 8.
The learned judge referred to the case of MS v Sweden (1999) 28 EHRR 313. In that case the ECtHR held that there were relevant and sufficient reasons for the communication of the applicant's medical records by a clinic to the Social Insurance Office and that the measure was not disproportionate to the legitimate aim pursued. Accordingly, it concluded that there had been no violation of the applicant's right to respect for private life, as guaranteed by Article 8 of the Convention.] Sales J also made the following helpful comments obiter:
‘In my judgment, it is arguable that the good practice indicated by Kennedy LJ in Woolgar (a case decided on common law principles prior to the coming into effect of the HRA), that in ordinary circumstances the person whose confidential information is in issue should be informed that it is proposed to disclose that information to a professional or regulatory body, will be required under Article 8.’
Sales J. also cited with approval the comment of Kennedy LJ in Woolgar at [2001] 1 WLR 25 in which he said ‘… it seems to me that if the police come into possession of confidential information which, in their reasonable view, in the interests of public health or safety, should be considered by a professional or regulatory body, then the police are free to pass that information to the relevant regulatory body for its consideration’ – i.e. without having first to seek an order of the court to permit them to do so.'

 

6th Edition » | Chapter 6